No military trials: SC ruling gives PTI a ray of hope

Everyone is wondering why judgment not delivered during term of CJP Bandial

ISLAMABAD:

The Supreme Court’s Monday ruling against trial of civilians in military courts has given new hope to the PTI party which has largely been decimated in the wake of a heavy-handed crackdown launched after the May 9 incidents of rioting and vandalism.

The judgment is delivered by four future chief justices of Pakistan (CJPs)—Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi and Ayesha Malik.  Justice Sayyed Mazahar Ali Akbar Naqvi is also signatory to the majority order.

Except for Justice Afridi, all other members of the bench were associated with former CJP Umar Ata Bandial camp. Some of these judges had passed orders for holding the general elections for Punjab and Khyber Pakhtunkhwa (K-P) assemblies within 90 days.

They had faced a tough time at the hand of the last PML-N led coalition government on account of their judicial opinions. Since February this year, they are not in the good books of the powerful circles.

Everyone is wondering why this judgment was not delivered during the term of CJP Bandial. After Justice Bandial's retirement, his like-minded judges' gave a very bold judgment which is also shocking for the security establishment as the court has struck down 56-year-old laws about court martial of civilians.

Usually judges show restraint in matters involving interests of the security establishment.  One lawyer believes that former CJP Bandial may be the reason for their judicial restraint in high profile cases.

A senior lawyer said the judgment may be a reaction to the various events that have happened since February. “It would have been much better, if the judgment had been delivered during CJP Bandial’s term.”

Many believe that the SC has given a clear message to the security establishment that military justice for civilians will not be acceptable.

However, it has also sparked a debate as to why the apex court is not deciding the cases related to suspension of the Peshawar High Court judgment regarding acquittal of dozens of civilians convicted by military courts. These civilians have been detained in internment centres for the last several years.

Some analysts state that the PHC case is not being taken up because the “Lahore elite” has no interest in these cases. They urge CJP Qazi Faez Isa to list the case and give relief to the detainees in view of Monday's judgment.
Former attorney general for Pakistan (AGP) Ashtar Ausaf Ali said the Monday ruling will also have a bearing on the cases of Indian spy Kulbhushan Jadhav and alleged CIA spy Dr Shakeel Afridi.

One of the law officers said no civilian could be tried in future by military courts. He, however, expressed hope that the federal government will get relief in the appeal against the ruling which will be heard by a larger bench comprising other judges.

Salahuddin Ahmed Advocate termed it as a “very welcome order”.

"Sections 2 (1) (d) and Section 59 (4) which allowed civilians to be court martialled were against the independence of judiciary and the right to fair trial and due process.

“Just because an offence has been committed against the armed forces does not mean that fundamental rights should be thrown out of the window. Civilians can only be tried by independent civilian courts where they have the full rights to defence, ordinarily available to accused persons."

Former AGP Tariq Mahmood Khokhar described it a “momentous decision for the affirmation of the Constitution and the rule of law”. "It is also in consonance with our obligations under international law and treaties: and, it qualifies as a fig leaf for our traditional jurisprudence."

Khokhar, however, noted that the crucial question is what will happen now.

"Will there be defiance? Whether its [ruling’s] application would be retrospective or prospective? What would be the outcome of the expected appeals? Will there be a resurrection of a factious and fractious Supreme Court?"

Abdul Moiz Jafferii Advocate said that that was really the only possible order in this case if justice was going to be done.  "The overreach in the way these people have been arrested and held had simply no legal sanction."

Jafferii said these rioters have committed criminal acts and destroyed state properties. “They must be tried for it in a court of law, which for them cannot be a military court.”

Usama Khawar Advocate said the Supreme Court's decision holds the promise of rejuvenating the citizenry's waning trust in the judicial system, which had eroded since the May 9 events when court orders were openly disregarded without significant consequences.

"Moreover, the verdict significantly bolsters the credibility of the Supreme Court. By displaying its independence, it underscores that the judiciary is not a one-person dominion, where the Chief Justice's influence reigns supreme, but a bastion of internal judicial autonomy.

“This resounding demonstration that the Supreme Court is not a mere rubber-stamp for the military preferences fosters confidence in its commitment to uphold constitutional principles. Simultaneously, the decision underscores the chief justice's impartiality and neutrality.

“It signals that the chief justice does not yield to external pressures from the establishment or government, dispelling expectations to the contrary.

“In essence, this landmark verdict is poised to rejuvenate public trust in the judiciary, fortify the Supreme Court's integrity, and affirm the chief justice's autonomy, ultimately reinforcing the core tenets of Pakistan's democratic framework," he said.

Recently, a three-member bench led by CJP Qazi Faez Isa has shown full determination about holding general elections. The bench wants to create deterrence against those who violated Article 224 (2) of Constitution which says elections will be held within 90 days after dissolution of assemblies.